More on the new retaliatory eviction rules

I was having a discussion recently with Rajeev Nayyar of Fixflo about the retaliatory eviction rules (which I have previously discussed here).

These rules, set out in s33 of the Deregulation Act 2015, apply to new (including new fixed terms of existing tenancies) created on or after 1 October 2015.

Is it worth responding adequately?

The point we were discussing is, are the rules about landlords having to respond within 14 days actually relevant, or is the only thing which really matters (insofar as making a section 21 invalid) the service of a notice (a relevant notice – see my previous post) by the Local Authority?

Whether a section 21 notice is valid is all about the reason why, and when, the landlord serves the notice.  And whether this could be ‘retaliatory’.

But the regulations are complex and not entirely clear.  We came up with four situations and two different interpretations of two of them.

It is assumed in these examples that the complaint is a genuine one and (eg) not for something the tenant has damaged himself, and there are no problems about the tenant being able to contact the landlord.

Situation 1

Larry the landlord serves a s21 notice in July.  Tony the tenant then goes off and complains to his Local Authority, who serve a ‘relevant notice’ in October.

In this situation, Larry has not served the notice as a ‘retaliation’ so he can rely on his notice.

Situation 2

Larry serves the notice section 21 notice in November, ie AFTER the Local Authority notice is served on him.

In this situation, the service of the notice will be retaliatory because he wants Tony to leave rather than have to do the work in the notice.

Here Larry’s notice will be invalid and further, he will not be able to serve a valid notice during the six months following the Local Authority notice.

These two situations illustrate s33(1).  Now let’s turn to s33(2).

Situation 3

This is where Tony has complained to Larry in June about (say) a problem with the boiler.

Larry responds ‘adequately’ – this means that he tells Tony what steps he is going to take to address Tony’s complaint and gives a reasonable timescale for doing the work (s33(3)). But Larry then serves a section 21 notice in July.

Situation 4

Here, after Tony has complained in June, Larry fails to respond adequately and just serves his section 21 notice.

Can Larry rely on his section 21 notice?  There are two interpretations.

Interpretation A

This is that  in both situations Larry can rely on the notice UNLESS the Local Authority then inspect the property, find a hazard and serve a ‘relevant notice’ in October.

If this happens Larry will not be able to rely on his section 21 notice served in July.

Note that in situation 1 he is able to rely on the notice, but in situation 3 the notice was served AFTER Tony had made his complaint so arguably was in retaliation.  Even though he had made an ‘adequate’ response.

Interpretation B

This interpretation differs in that here, in Situation 3, Larry WILL be able to rely on his section 21 notice served in July, even after the service of the Local Authority notice in October, because he responded ‘adequately’ to the tenant’s complaint.

But in Situation 4, because he failed to respond adequately, he will only be able to rely on the notice served in July if the Local Authority don’t serve a notice.

In interpretation B, the service of a Local Authority notice in October will not retrospectively invalidate the section 21 notice for the landlord who responds adequately (situation 3) but will retrospectively invalidate it for the landlord who does not (situation 4).

This makes better sense of the legislation as the landlord who complies with the law will be rewarded for doing so.  But is it correct?

Legal analysis

The two differing interpretations of situations 3 and 4 depend on how you interpret section 33(2).

Section 33(2) has a great long list of subsections. Let’s take a look at it:

(2) A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where—

(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,

(b) the landlord—

(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,

(ii) provided a response to the complaint that was not an adequate response, or

(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,

(c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord,

(d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and

(e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.

It looks from the statute as if Interpretation A must be correct.  For interpretation B to work subsection (b) would have to be differently drafted. For example if it said

(b) the landlord—

(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given, or

(ii) provided a response to the complaint that was not an adequate response, and

(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,

Which would tie the retrospectively making of the section 21 notice invalid after service of the Local Authority Notice, to an inadequate response by the landlord.

As this is not the case, Interpretation A  must be the correct one.  So giving an adequate response, on its own, is not going to help the landlord, if the Local Authority serve a notice afterwards.

E for Extremely confusing

There is also the ultra confusingly worded (e) which seems to be referring to a notice served between the tenant’s complaint to the Housing Authority and the service of their notice.

This seems to indicate that the validity of the landlords notice will also depend on when the tenants made their complaint to the Local Authority – something he would have no knowledge of and would find hard to challenge if raised as a defence to a claim for possession.

In conclusion

All in all, it looks as if the only way that the landlord will be able to rely on a section 21 notice served after a tenant complaint, is to deal with the repair so that the Local Authority never serve their notice.

Which is the object of the exercise.

Notwithstanding this though, and given the uncertainties on the effect of serving an “adequate response” landlords would be well advised to serve a response that is adequate under the legislation to every repair request that they receive and to keep a record of it.

What do you think?